The Fight for the Gift of Street Art

November 7, 2012

Throughout the dramatic, dangerous, and world-altering revolution in Cairo in 2011-2012, young activists and fighters covered the city center’s walls with meaningful artistic graffiti—pictures and names of heroes, martyrs, and the communal hopes and struggles of the rebellion. But, as reported by the New York Times in fall 2012, Egyptian security forces launched a campaign to remove all graffiti reflecting the revolution in and around the symbolic Tahrir Square, sparking fury and disapproval from activists and the community. Graffiti’s societal influence is enough to warrant a fight for its protection, and the idea of ownership needs to be applied to illegal street art.

Despite Graffiti’s societal value, intellectual property protection critics tune out this realm of creative culture. Jonathon Letham’s “The Ecstasy of Influence” argues for the important understanding of art as a gift, and Lawrence Lessig’s “Free Culture” condemns the influence of power over cultural progress and freedom. Neither thinker addresses the struggle for graffiti as an important art form and as creative intellectual property, or the necessity of its unique case within these topics. While copyright laws fail to protect graffiti, we can address this absence by applying Letham and Lessig’s arguments about public art to graffiti, showing how protecting graffiti is the moral responsibility of the community and culture it embodies, rather than the monetary or economic responsibility of its artist.

Graffiti stood as an influential power in the Egyptian revolution and continues to do so. The New York Times attributes the graffiti in Cairo as “a street history that chronicles image by image the evolution of Egypt’s upheaval, which has yet to settle.” (October 7, 2012) While graffiti was not a popular trend in the country beforehand, street art started to pick up during the first three intense weeks of revolt against Mubarak’s regime. Cairo’s graffiti proclaimed the country’s optimisms and grievances during the revolution and its proceeding events. As quoted by the New York Times, Egyptian publisher Mohammed Hashem said, “Graffiti has won us freedoms we had never dreamed of before. It has been the strongest voice of the revolution.”

It is evident that this graffiti is not just bothersome vandalism that is diminishing the beauty and cleanliness of a city, but is rather respected, communally appreciated, and emotion-ridden art. Bansky, perhaps the most well known graffiti artist today, continues to amaze the world with his artistic and satirical commentary on politics and society. Chicago artist Ray Noland colored President Barack Obama’s campaign in 2008 with his supportive political street art. While vandalism does unfortunately exist, powerful graffiti and its representation of a society’s suppressed emotions cannot be ignored.

Jonathon Letham’s “Ecstasy of Influence” does not mention graffiti, but it does comment on the importance of art with such impact, like the painted strife of the Egyptian revolution on the walls of Tahrir Square. Letham writes, “Art that matters to us—which moves the heart, or revives the soul, or delights the senses, or offers courage for living, however we choose to describe the experience—is received as a gift is received.” (66) He comments on the difference in the reception of art versus commodity, proving that the power of art should not be underestimated and therefore should be treated specially in terms of use, treatment, and legality. We must understand that powerful, influential artwork plays on a different scale than other products within the world of ownership. In Letham’s words: “The cardinal difference between gift and commodity exchange is that a gift establishes a feeling bond between two people.” (66) Regardless of graffiti’s illegality, it cannot be denied that meaningful street art, such as that by the Egyptian activists or Ray Noland in Chicago, contributes its own unique gift and feeling bond to a culture and its people. Through this bond, a culture can expose its inner passions, criticisms, and dreams in the rawest artistic form of all. Similar to a painter exposing his feelings on his private and legally owned canvas, a graffiti artist uncovers the sentiment of a society on its public walls. This significant difference in graffiti concerning the relationship between art and people justifies the necessity for its unique treatment in artistic protection.

Just as quickly as graffiti exploded as a political and cultural movement in Egypt, its removal began. The security forces’ campaign to cover the graffiti with fresh paint in Tahrir Square elicited a quick response. Many young protesters and artists returned to the walls, restoring the murals and even adding new slogans and pictures to express their disapproval of the campaign. The New York Times quotes one of the newly depicted words on Mohammad Mahoud Street: “If you were doing the right thing, you would not be afraid of what’s painted.” Since the street art in Tahrir Square represented so much communal progress, struggle, and passion, the society strongly opposed the government’s removal of it. But their only outlet for this frustration is through more rebellion—graffiti is not protected as an art form by law. If the walls do not belong to the people, does the art still deserve to be fought for?

To help answer this question, we turn to famous Egyptian street artist Ganzeer, who told the New York Times, “Every art form has its rules. When I paint on wall, I commit my art to the street. The street owns it.” Jonathan Lethem defines a term for this idea: public commons. He describes this: “A commons belongs to everyone and no one, and its use is controlled only by common consent.” (66) Ganzeer, an icon for the revolution graffiti movement in Cairo, credits the ownership of his work not to himself—but to the public commons. This communal possession is where graffiti differs from a painting hung in a gallery. With Letham’s logic, this would imply that graffiti is controlled by the community, not by the original artist or, in Egypt’s case, the government forces. Lawrence Lessig reacts to this powerful control of culture in his book “Free Culture,” as he warns us that we are losing our innovative freedom and becoming a “permission culture.” (8) While Letham asserts the importance of a communal commons, Lessig denounces the restrictions on cultural growth that result from powerful bodies patrolling innovation and creativity. Both authors fear for the freedom of expression and visionary advancement in culture and society. Therefore, significant and communally appreciated graffiti offers an invaluable gift, and its ownership extends beyond the artist to the public commons, which is too often unjustly dictated and limited by powerful parties.

How does copyright law in America apply to these questions of graffiti removal? Assuming the graffiti is an original piece, a street artist does indeed maintain copyright interest, no matter its illegality. This protects the artist from his graffiti being distributed or copied without permission, but it does not prevent it from being covered or removed. (Penney) As political blogger Jon Penney of “Persuasive Authorities” writes about graffiti, “So, basically I can stop you from making money off my art, but not destroying it. So much for copyright.” Copyright laws cannot rescue the street art that defines a city or culture’s personality, emotions, and history. Artist Joy Garnett asks an applicable question in her comments about her allegedly plagiarized painting—“Can copyright law, as it stands, function in any way except as a gag order?” (55) Since copyright law focuses on preventing certain types of expression rather than the destruction of public art, its protection is inapplicable to graffiti.

The best option for street art protection would stem from an artist’s “moral rights.” Betsy Rosenblatt of Harvard Law School explains:

“An [artist] is said to have the “moral right” to control her work. The concept of moral rights thus relies on the connection between an [artist] and her creation. Moral rights protect the personal and reputational, rather than purely monetary, value of a work to its creator. “

Moral rights include the right to the integrity of the work, meaning the restriction for others to modify, contort, or mutilate the piece. Even if an artist has lost possession of his artwork, moral rights protect the relationship between an artist and his art. Distinct from economic rights, moral rights apply to a different, more abstract idea of ownership, related to an artist’s passions and feelings portrayed in his pieces. The Egyptian security forces’ whitewashing the painted faces of the protestors’ heroes and icons was definitely a case of artwork mutilation, which violates these ideals.

In the United States, moral rights are established under the umbrella of the Visual Artists Rights Act (VARA) of 1990. VARA’s protections are very ambiguous, and street art is left out of the conversation completely, even between intellectual property right critics like Letham and Lessig. Penney, on the other hand, argues,

“Some rare cases… beg for some kind of legal protection, where artworks created on publicly (not privately) owned property have, over time, taken on a special historical, public or artistic meaning or importance. This latter point may show the way to define a special category of cases that VARA, or some other statute, ought to protect.”

While establishing more clarity about graffiti under VARA could do justice to its creative and societal importance, the reality is that most street artists do not hold the political power or influence to fight for their artistic moral rights. On this issue, Lessig critiques the limits on creative freedom, asserting that creative permission “is not often granted to the critical or the independent.” (10) Commenting on the same issue of powerful parties abusing weaker developing artists, Letham adds that “the loser is the community, including living artists who might make splendid use of a healthy public domain.” Both authors condemn intellectual property laws’ unfair treatment of new, less-established artists, as so do the young activists in Cairo, Egypt.

The quick, spirited response of these Egyptian activists and artists to the removal of their sacred street art illustrates again the Letham-inspired idea of graffiti existing in the public commons. Powerful graffiti represents the intimate cultural values and vigor of a community, which belong to a whole society. Moral rights, again, apply to the personal relationship between art and artist. If an artist of meaningful and significant graffiti were to be included in VARA like mainstream visual artists, he would most likely not withstand the powerful pressure from strong companies, artists, or governments, with proof according to Lessig’s account. This is the time to turn back to Ganzeer, who willingly disassociates himself from his hugely notable artistic pieces. The moral rights of this kind of meaningful, widely admired graffiti do not belong to its artist but to the community, as it resides in the public commons. Graffiti’s moral rights should pertain instead to the personal relationship between art and society, rather than with the specific individual artist. Therefore, perhaps it is not the responsibility of the artist to stop the wrecking of his street art. Perhaps it is the responsibility of the commons—the people—to fight for and protect what is rightfully theirs.

Lessig and Letham’s main arguments are the same. The process and result of intellectual property protection are faulty, our culture is at stake, and, most importantly, we as society hold the obligation to speak up about it. “We have to remain constantly vigilant to prevent raids by those who selfishly exploit our common heritage,” writes Lessig about his concern of the depleting of public commons upon which cultural growth relies. (67) While Letham agrees that culture is threatened by its loss of freedom, he adds his critique of the occurring artistic abuse with a challenge: “Does common sense stand silent in the face of these extremes because… the more powerful side has ensured that it has the more powerful view?” (12)

Egyptians are not standing silent. They are objecting, protesting, repainting and repainting some more. Copyright law has not caught up with the need to protect appreciated street art around the world, but the owners of the public commons, the people and their culture, hold the power needed to clarify this dangerous ambiguity. With the undeniable gift of meaningful graffiti art as motivation, society can beat the abusive powers that are slowing down cultural progress and communal expression. Americans may not have a political revolution for which to advocate, but all citizens of the world have their culture, community, and creativity at stake—which is equally worth the fight.

By Lucille Marshall

Written for University Writing with instructor Lauren Whitehead at Columbia University